What Does Supreme Court Ruling Mean For Affirmative Action?

This is TELL ME MORE from NPR News. I'm Michel Martin. My thanks to my colleague Celeste Headlee for sitting in for a few days while I was away last week.

Later on today, we'll talk about that controversial decision by the American Medical Association to classify obesity as a disease. We'll speak with a group of healthcare professionals about what that could mean.

But first, we turn to the Supreme Court, which has been considering a number of cases that touch on some of this country's most emotional issues. Today, the court ruled on one of them. It's about whether race can be used as a factor in undergraduate college admissions.

The case is Fisher v. the University of Texas at Austin. Abigail Fisher claims she was denied admission to that school, which was her top choice, because of the University's race-conscious admissions policy. The University said she would not have gotten in, even if race was not a factor. But she said that the University's policy violated her 14th Amendment rights to equal protection under the law.

In a seven-one ruling today, justices sent the issue back to a lower court but did uphold previous rulings on affirmative action. We wanted to talk about all this, so we've called John Malcolm. He's a senior legal fellow at The Heritage Foundation. Also with us, Kevin Johnson. He's the dean of the University of California at Davis School of Law. Thank you both so much for speaking with us.

JOHN MALCOLM: Thanks for having me on.

DEAN KEVIN JOHNSON: Thanks for having me.

MARTIN: You know, it's interesting that we are receiving statements from people on both sides of the issue - both sides saying, claiming that this is a victory for them. So Dean Johnson, I will start with you on this. You say this is a big victory for affirmative action. Talk more about that, if you would.

JOHNSON: Well, I think it's very clearly a big victory for affirmative action. The Supreme Court did not disturb, in the least, the decision Grutter vs. Bollinger, which said that narrowly tailored, race-conscious admission schemes could be lawful.

I do think that you could argue that, because this case was sent back to the Fifth Circuit, there was a victory of sorts for Abigail Fisher. But no decision was made on the big issue, the issue that people were looking at most carefully - what was - will there be an abolition of race-conscious affirmative action. The Supreme Court clearly did not do this. It was a very narrow opinion and it's very much limited to the facts of this case.

MARTIN: John Malcolm, what do you say?

MALCOLM: Well, I think that Kevin is right as far as he goes, in the sense that the Supreme Court did not overrule Grutter and say that schools can never employ racial preferences in its admission standards. However, the court also said, look, school administrators that decide that diversity is somehow a compelling interest, they may get some slack cut to them with respect to that decision.

However, they are entitled to no deference, whatsoever, with respect to the methods that they employ to achieve a diverse educational community, and that strict scrutiny applies, and that the schools are going to have to bear the burden of proving that there is no race-neutral alternative available to achieving that objective. So in that sense, the affirmative action field, or racial preferences field, was narrowed considerably if schools want to continue with these racial preference policies.

MARTIN: Well, let's talk about that. Dean, why don't you start. Talk about, since you are, you know, actively in an academic setting where decisions have to be made, you know, all the time about who to admit and whom to disappoint. How do you envision this decision working in the real world in which you live?

JOHNSON: I think, in California, we have Proposition 209, so there is no race-conscious affirmative action in California. But in other states, I do think the burden will be on the university to show, concretely, that to ensure a diverse student body, race has to be one factor in the admissions process.

I think that a carefully crafted scheme, not any different from the one used by University of Michigan Law School and upheld by Grutter, can withstand scrutiny. In this case, the Fifth Circuit sort of went beyond what Grutter said and basically said, we're going to defer to the University of Texas on this one and let them do what they want to do.

What the court did - and I think this is entirely accurate - is said, we're going to look very carefully at your rational, your justification, your means for securing a diverse student body, and we're going to look at that, and courts should look at that.

So I think that the burden's going to be on the universities to show why they're doing what they're doing, how they're doing it, and be very careful about how race plays into the analysis.

I do think that it is possible, since it has already occurred in the University of Michigan case, that an affirmative action plan that does consider race as one factor in admissions can be lawful and constitutional.

MARTIN: So Dean, hold on, so you're saying that this - the decision actually spoke to the Fifth Circuit's decision-making, not the policy itself. So is it your view that, you know, all things being equal, the University can continue to do what it has been doing? That their - because I - their position is that their program is very narrowly tailored.

JOHNSON: I think they are and I think what the Court, the Supreme Court, said today is that the Fifth Circuit has to look carefully at the University's rationale and see if it's carefully crafted. It can't just take the University's word for it. And so I think that's why this Fifth Circuit decision is somewhat different than the one that was looked at by the Supreme Court in Grutter and some of the other cases.

In this case, the Fifth Circuit, in an opinion by Judge Higginbotham, basically said, we're going to defer to the University on this to a great extent. And the Supreme Court, in it's decision this morning, said, no, courts have to look carefully, make sure that race is carefully - you know, is used carefully and in the proper way. But I do think that this is a narrow decision.

MARTIN: John Malcolm, it seems, though, that what you're saying is, is that the litigation will continue, because even though the court upheld the principle - that race can be used as a factor in principal - what I think I hear you saying is that this still means that institutions are going to be faced with litigation, to continually have to prove that their programs are narrowly tailored.

MALCOLM: Yeah, I don't think that this is a narrow decision at all. I mean, the Court was very clear, that said, if you make decisions on the basis of race, that is inherently suspect. And that if you're going to try to justify that, that there needs to be a searching examination of those practices.

And while the Court said, we will defer to educational institutions when it comes to deciding what their educational mission is and whether or not that includes diversity. However, the means that they employed are going to be subject to very strict scrutiny and it will only be permissible if there is no other racial-neutral alternative available.

In the case of University of Texas, they had already achieved considerable diversity through a race-neutral plan of admitting the top 10 percent of all high school students. And then they added on top of this, this personal achievement index. And I would not be surprised at all if that personal achievement index is struck down, because it will not withstand strict scrutiny.

MARTIN: We're talking about the Supreme Court's decision in a major affirmative action case. My guests are senior legal fellow at The Heritage Foundation, John Malcolm, and that's who was talking just now. Also with us, Kevin Johnson. He's dean of the School of Law at the University of California at Davis. Dean Johnson, was there anything about the case that surprised you?

JOHNSON: I think it is surprising that there was a seven-one, this, you know, sort of line up along the court. There's only one dissent, by Justice Ginsburg. And Justice Scalia concurred on the judgment, which actually does suggest it's a narrow opinion because he basically said, you know, we weren't asked to overrule Grutter, we're not overruling Grutter, and I concur on the judgment in this case. So I was surprised by all of that.

I would have thought that Justice Breyer might dissent, as well as Justice Sotomayor, as well. But the fact that, you know, that they joined the majority opinion, to me suggests that they viewed it as narrow and not all that different from what the court said in Grutter and probably were in agreement that Grutter should be upheld.

MARTIN: John Malcolm, one of the things that I was, I'm wondering if you were surprised by - why the court took this case at all, given the facts of this case. I mean, it's been reported at this point, I think it's well-known at this point, that, you know, more than a hundred black and Hispanic students with superior grades and scores than Abigail Fisher were also denied admission and that there were white students with worse grades and scores than hers who were admitted.

And so just based on the facts of this case, I think some people have been puzzled by it all along. I was wondering if you were and what you make of it?

MALCOLM: No, I wasn't puzzled by that at all. I mean, with respect to University of Texas, the latest study shows that Asians have 467 points higher, score 467 points higher on the SATs than blacks, and whites score 390 points higher on the SATs than blacks and Hispanics who were admitted to that University. So the racial preferences system is severe.

In terms of what surprised me here, you had two justices who came out and said that they were prepared to overrule Grutter, even though they hadn't been asked to do so. You had a number of the quote, unquote liberal - I hate those labels - justices saying strict scrutiny means strict scrutiny and they were not going to defer to University of Texas.

And actually, Justice Ginsberg, very much to her credit, in dissent said, look, these race-neutral tests that schools try to come up with are really just, I believe she said, camouflage. She said, you have to be an ostrich not to believe that they're really not taking race into consideration. She would say, based on past discrimination, Katie, bar the door, and she would let all of these kinds of tests prevail, but at least she was honest about it.

MARTIN: John Malcolm, I asked Dean Johnson this question about what you think happens in the real world of admissions going forward. What's your sense of that? I understand that you're working in a research institution, a think-tank at the moment and you're not, kind of, in that active process of admitting students. But what do you think happens with admissions committees now, anything?

MALCOLM: Yeah, well, I think they're going to be hard-pressed to prove that this illusory goal of achieving diversity can be achieved, you know, through the methods that they'd like to use, which is essentially using race norming and race preferences. And I think that, ultimately, a lot of those admissions practices will fall. And I think that society as a whole will be better off, including the people who are supposed to be benefited by it, which is, are the minority students. I think that they will go to schools that are well-matched for them and for which they are well-prepared and they will thrive.

MARTIN: Dean Johnson, what do you think? Where does this debate go from here?

JOHNSON: I mean, I think the debate continues as it's continued for a number of years. I do think that, you know, that the minorities do attend the University of Texas are successful and do succeed and they're not overmatched for their qualifications.

So that mismatch there is really a red herring, I think. It's important to keep in mind that the universities are acting in good faith, trying to do their very best.

And in the future, I mean, there is going to be litigation and I think the universities are going to have to justify their positions and justify their programs. But I see this as sort of a minor pit stop, if you will, in the overall long-standing affirmative action debate. And it's, that's why, to me, it's not surprising the Court took the case, despite the credentials of the plaintiff. It's a hot button issue that raises lots of people's - you know, gets a lot of people upset and worried, especially in these, you know, tough admission times.

MARTIN: Well, thank you both so much for joining us, especially on such short notice. Thank you so much. We appreciate it. Kevin Johnson is dean of the School of Law at the University of California at Davis. He was with us by phone. John Malcolm is a senior legal fellow at The Heritage Foundation here in Washington, D.C. We caught up with him in his office, as well. Thank you both so much for speaking with us.